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Judge orders DHS to keep man in US for immigration hearings instead of returning to Mexico

DHS and TSA work with Amtrak and law enforcement partners. (Barry Bahler/Department of Homeland Security)

An immigration judge has ordered the Department of Homeland Security to keep a Honduran asylum seeker in the United States while he waits for his court proceedings instead of returning him to Mexico again under a Trump administration program.

Judge Scott Simpson said after evaluating the man’s mental competence in a special hearing on Friday, he found that the man would need safeguards in his case to ensure due process. He ordered one safeguard immediately put in place — to remove the man from a program known officially as Migrant Protection Protocols and more widely as “Remain in Mexico.”

“I find that he lacks a rational and factual understanding of the nature of the proceedings,” Simpson said in issuing his order.

This is the first time that a judge has made such a ruling since the program’s implementation in January, according to advocates who have been monitoring immigration court proceedings.

The program requires certain asylum seekers from Honduras, El Salvador and Guatemala to wait in Mexico while their cases progress in immigration court. The man has been waiting in Tijuana as part of the program for several months.

A Customs and Border Protection guide for officials implementing the program says that migrants with known physical or mental health issues should not be included in the program.

“It’s a big deal that a judge recognized that there was a predatory nature to having put this person in the ‘Migrant Persecution Protocols,’” said Ian Philabaum of Innovation Law Lab, calling the program a name used by some immigrant rights advocates to criticize it. “He wasn’t going to have a chance, and now he gets a chance.”

At the man’s first hearing in March, Simpson quickly became concerned that the man might have a mental competency issue that would make him ineligible for the program or require other protections. He ordered DHS to evaluate the man’s mental state.

Simpson asked government attorneys at each hearing after that whether the man’s mental state had been evaluated and whether the government believed he should continue to be included in the program.

Each time, the government attorney responded that the man should continue in MPP.

Still skeptical, Simpson told Immigration and Customs Enforcement attorney Dan Hua to be prepared to give details on Friday about DHS’s evaluation of the man before he was returned to Mexico in March.

When the judge came into court Friday morning, Hua was not able to answer that question.

“The government’s inability to provide that information is simply not excusable,” Simpson said.

Simpson gave Hua 30 minutes to find out answers.

Hua said immigration officials at the port of entry had evaluated the man each time he’d come to court, meaning that as of Friday, he’d been evaluated four times.

Hua was not able to produce any evidence showing what the evaluation observed or what standard it used when the judge pressed for more details.

Philabaum, who has observed many MPP hearings in immigration court and was present on Friday, said that fact was significant.

“That assessment of the mental competency was performed on four different occasions, and on four different occasions, according to the U.S. government attorney, their assessment was he was perfectly competent to proceed with his immigration case representing himself,” Philabaum said. “However, to the contrary, in this individual’s first hearing, it took the immigration judge approximately two minutes to realize there was an issue of competency here.

“Whatever type of standard that CBP has instituted to assess the competency of an individual to be eligible, according to the immigration judge today, it has failed.”

DHS officials, CBP officials and Department of Justice officials were not able to immediately respond to a request for comment about the case.

Simpson decided to do his own evaluation of the man’s mental state under an immigration court precedent known as the Matter of M-A-M-.

He listed the rights that the man has in his case, such as the right to present evidence and the right to question witnesses. He asked if the man understood his rights.

“Um, yes. I need more,” said the man through a Spanish interpreter, failing to understand the judge’s question. “I need more because here I only have some letters, some birth certificates. They’re not translated into English yet.”

“Sir, I’m the immigration judge in your case. It’s my job to decide whether you can stay in the United States,” Simpson said. “In your own words, tell me who am I and what’s my job.”

“I cannot understand you,” the man responded.

In the end, the man was only able to appropriately respond to simple questions such as today’s date and what city he was in. He was not able to identify which document among several that he had brought was the one he wanted to present to the judge about his case.

He told the judge he had not had much schooling and couldn’t read or write.

After the judge’s order, Hua gave the man instructions for returning to the port of entry for his next hearing, which would only be necessary if the man were still returned to Mexico.

“Why would he be in Mexico?” Simpson asked when Hua handed the man those instructions.

Hua responded that individuals in such situations might “accidentally return” so he was giving the instructions out of “an abundance of caution.” Hua left the room to confer with two guards contracted through ICE who are responsible for transporting MPP returnees to immigration court in San Diego from the San Ysidro Port of Entry.

Then the guards took the man away.

ICE later confirmed he’s currently pending transfer to the agency’s custody.

He could either be taken to an immigration detention facility or released “on parole” into the U.S. to a sponsor while he waits for his next hearing.

Simpson said that depending which option the government chooses, other safeguards may be necessary, including providing an attorney for him if he’s detained.

The judge ordered the government to update him about the man’s location and for the man to come back to court in August.


© 2019 The San Diego Union-Tribune

Distributed by Tribune Content Agency, LLC.